Sunday, June 23, 2013

Are Men to Blame for BigLaw?

Vivia Chen, chief blogger at “The Careerist” and legal
career maven, recently published a blog post reflecting on a study by a
Hastings law professor, Joan Williams, documenting that men logged more hours
at work than women. Ms. Chen’s post is great and I invite you to go read it.
Briefly, Ms. Chen explores the application of this study to women in the law,
and particularly in BigLaw, and reflects on Williams’ inference that there is
something inherent in women that will forever keep them from narrowing the gap
in hours worked.

At the end of her post, Ms. Chen poses two questions to her
readers:

·Do you believe Big Law will ever become saner?

·Is it the male work culture that dictates the
hours—or is the job just inherently crazy?

My answer to both those questions is “no” but to tell you
why, let me take the questions in reverse order:

Is it the male work culture (i.e. "machismo") that dictates the hours—or is the job just
inherently crazy?

The job is not crazy but the profession is. And while
machismo may be partially to blame, it’s not the only reason.

Yes it’s true that the majority of the profession has
traditionally been male (though women now out-number men in law school) but it’s
also true that those guiding the profession to date have also been “lawyers.” Some
of the traits common to all lawyers such as risk-aversion, drive, and competitiveness,
can also be seen as at least partially
responsible for the current state of the profession.

Lawyers of either gender, but particularly those at BigLaw, do
what’s safe and the billable hour is a very safe way of generating revenue. You
simply sit down, start working, and send out bills. Charging by the hour
does not require risky investments in innovation or capital.

Lawyers, particularly lawyers in BigLaw, are also very
driven, competitive, and successful. They completed at least nineteen years of
formal schooling, usually at or near the tops of their classes, bested numerous
aptitude and subject matter exams, and satisfied other necessary professional
and extra-curricular requirements to achieve respected degrees and high-paying jobs.

It’s not hard to see why that risk-averse and driven
population concluded that the number of six-minute increments
accrued to one’s clients’ bills, and by extension the number of hours spent at
work, would be the means by which success in BigLaw, and in the law practice in
general, is determined: it's easily measured and scalable, and can be very lucrative.

Therefore, while machismo may be to blame, it may also
be that lawyers’ innate risk aversion, drive, and competitiveness are
responsible for the specific, unique, and, somewhat perverse, incentives that
now dictate the legal profession.

The more troubling question is not how we got here but where
are we going?

This is where Ms. Chen’s first question comes in: Do
you believe Big Law will ever become saner?

I do not. The system has become too entrenched and the
incentives too great to unwind.

Partners who have made it to the top of the pyramid have
little motivation and even less incentive to change the model that now benefits
them quite handsomely. Associates, be they men or women, who express
dissatisfaction with their condition can be readily replaced by another
associate eager to take a prestigious high-paying job and put up with the
inhumane treatment. (I’m reminded of the reaction of a BigLaw partner to one
associate who indicated that “. . . working seven days a week no matter
what salary I was getting was crazy.” See the rest of her fabulously-told story
on one of my favorite sites, Leave Law Behind.)

The only option is to overhaul the whole system. I’ve
blogged elsewhere about ReInvent Law and why innovation in
the legal profession is challenging, so I won’t go into that here. I will say that
lawyers seeking true professional and personal balance are battling an
entrenched and well-resourced foe that is not likely to acquiesce quickly.

In conclusion, while men may have influenced the BigLaw
model, attributing success at BigLaw to male machismo, or failure
there to its lack, may not be entirely accurate. Instead, the system reflects the
values of its members both male and female. For better or for worse, lawyers themselves
have made the billable hour unquestionably central to the traditional practice
of law.

Either way, the responsibility to change the prevailing
model, dominant both at BigLaw and throughout the industry, and make that model
more accommodating to both women and men who want successful and
balanced careers falls on the shoulders of all attorneys in the profession
today.

The most important question is not who broke it or as Ms.
Chen asks will it ever fix itself but, rather, how are we going to fix it?